DOJ Files DOMA Brief: Law Bad, But Must Be Enforced

The Justice Department filed a brief yesterday in a case challenging the Defense of Marriage Act (DOMA). While it says Obama opposes DOMA and thinks it should be repealed, it still recommended the challenge at issue be dismissed.

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.


And in this case, plaintiffs' constitutional claims are unavailing. In their opposition brief, plaintiffs offer only a token response to the United States' arguments on the merits. Indeed, they say nothing at all in response to the arguments concerning their "full faith and credit," right to travel, right to privacy, First Amendment, or Ninth Amendment claims. On that basis alone, those claims should be dismissed.

LA Times reports here.

That ambivalence spurred criticism from both sides of the gay rights battle. Opponents of same-sex marriage accused the White House of insincerity in its defense of the act, and supporters demanded a more proactive approach to ensuring that all citizens enjoy equal protection under the law.

As a candidate for the White House, Barack Obama vowed to repeal the law, which bars the federal government from treating same-sex marriages as legal or granting federal benefits to gay spouses.

According to Justice Department spokeswoman Tracy Schmaler:

"The department's filing in this case upholds the rule of law in keeping with our obligation to defend federal statutes when they are challenged in court," Schmaler said. "The Justice Department cannot pick and choose which federal laws it will defend based on any one administration's policy preferences."

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    Steve M and I went around about this (5.00 / 2) (#1)
    by andgarden on Tue Aug 18, 2009 at 03:07:24 PM EST
    yesterday. I think this brief was much improved for various reasons. But I'm convinced that the Administration has much more discretion to refuse to defend repugnant laws than it has been claiming.

    Yeah (none / 0) (#3)
    by eric on Tue Aug 18, 2009 at 03:22:07 PM EST
    and if they were really "defending" the law, wouldn't they pretty much precluded from criticizing it?

    It is kind of like the lawyer that has an ethical duty to defend his client but then in the opening statement says that the only reason he is defending his client is because he has to.  Not exactly in keeping with lawyerly ethics.


    No question (none / 0) (#4)
    by andgarden on Tue Aug 18, 2009 at 03:24:48 PM EST
    I am not running around with my hair on fire this time because it's blatantly obvious that they did the absolute minimum to defend the law. But I think they could and should have taken a step further.

    I'm not sure (none / 0) (#7)
    by Socraticsilence on Tue Aug 18, 2009 at 06:14:06 PM EST
    we want to support selective enforcement of the law (though I know it happens), it just seems like a slippery slope- what if a future Admin decides that say the VRA only needs to be enforced selectively?

    Well, it's not really (none / 0) (#8)
    by dk on Tue Aug 18, 2009 at 06:24:38 PM EST
    enforcement of the law.  It's defending the law in court.

    It would be one thing if the Obama directed agencies under his control not to refuse to provide equal benefits to same-sex married couples.  That would be not enforcing the law.  


    Good thing our new president (5.00 / 3) (#2)
    by Spamlet on Tue Aug 18, 2009 at 03:07:48 PM EST
    doesn't triangulate the way bad old Bill Clinton did.


    <broken record> (none / 0) (#5)
    by The Last Whimzy on Tue Aug 18, 2009 at 04:34:09 PM EST
    I have a friend who became involved with an entirely unsuitable ...., Whenever any of us pointed this out to him he invariably made the same feeble reply:  "lt's beyond my control," he would say.</broken record>

    A statute is not a client (none / 0) (#6)
    by Bemused on Tue Aug 18, 2009 at 04:58:57 PM EST
      Nominally the client is "the United States of America" but a government can only act thorough its officers. In this respect it is similar ro a corporation.

      The lawyer filing the brief is not violating any ethical rule involving duty to a client unless he acts in mannner contrary to the client's best interests (or expressed wishes on some matters withing the client's sole discreation).

       The brief says the  POLICY of the DOJ is to defend lawfully encated statutes regardless of whether the current Administration supports the underlying policy. It would be quite a research project but I'd be interested in seeing if throughout history the DOJ has every single time opposed actions seeking to have a federal statute declared unconstitutional or  on its face or unenforceable in a specific application.

       I'd suggest the research might start where the USA and members of administrations  have been defendants in actions brought under various statutes and then wanted to  put forth the defense the statute is unconstitutional or can't be constitutionaly applied to them. Do DOJ lawyers always refuse to put forth such arguments? Or, do they just say hey it's bad policy to compel the President or a subordinate to do this  or forbid him to do that,  but despite the fact we believe this statute violates, for example, the separation of powers we won't argue that point because it's a duly enacted statute?

      Even if that were to be true, that policy would not have the force of law and I don't see a citation to a statute requiring defense of a statute.

        On the other hand, there is a very important distinction between believing a statute is unconstitutional and believing it is bad policy. the latter should be left to the political arena.

       If the person who authorized to axt for my institutional client wants language such as that in my brief, i don't think there is any problem at all unless i as a lawyer hold the firm belief that the authorized officer is seeking action contrary to the interest of the instituional; client. If i believe that then I should withdraw from representation. i f I don't believe that then what ethical consideration makes it improper?

    strange, (none / 0) (#9)
    by cpinva on Tue Aug 18, 2009 at 10:53:59 PM EST
    i don't recall seeing anything in the constitution that mandates DOJ defend every single statute. they never have before. what's so special about DOMA, that they feel compelled to now?

    the constitution does not mandate (none / 0) (#10)
    by Bemused on Wed Aug 19, 2009 at 09:39:50 AM EST
     that there be an attorney general or DOJ:

    [article II]Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.


    The DOJ and office of AG are  established by statute (cuurent 28 U.S.c. §§ 501 and 503, respectively). Other provisions in chapter 31 of the title address the representation of the interests of the USA in court, most saliently:
    And, most saliently, perhaps:

    § 530D. Report on enforcement of laws

     (a) Report.--
    (1) In general.-- The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice--
    (A) establishes or implements a formal or informal policy to refrain--
    (i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional; or

    I'd venture that a statute requiring a report to congress when something is done implcitly recognizes it may lawfully be done.